Scalia’s Supreme Court Replacement Should Respect Science

The qualities that make a good scientist are the same that make a good Supreme Court justice.

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One of the big questions facing the Supreme Court this term is whether pollution from coal-fired power plants stays within state boundaries. (It doesn't.)

Photograph by Ami Vitale, Panos

PUBLISHED February 23, 2016

Justice Antonin Scalia was a brilliant man in many ways. He was not, however, a science expert, or a science enthusiast, or even a science believer.

In one puzzling opinion, he admitted that he wasn’t sure whether he accepted the reality of molecular biology. In another, he wrote that “creation science” (that is, creationism) was a legitimate “body of scientific knowledge” and that public schools can teach “whatever scientific evidence there may be against evolution.” And in a dissent contesting the federal government’s duty to combat climate change, he shrugged that the court’s “alarm over global warming may or may not be justified.”

President Barack Obama has an opportunity to reorient the court in a more scientifically literate direction. David Faigman, a professor at the University of California Hastings College of the Law, recently declared that the current Supreme Court justices “have little understanding of science and make no effort to connect relevant scientific premises to their constitutional decisions.” Surveying the court’s science-based decisions, it’s hard to disagree.

That’s why the Supreme Court needs a nominee who respects, values, and understands science—as well as the integral role that science plays in many crucial legal decisions. From environmental protection to reproductive rights, gay rights, and juvenile justice, many of the court’s most important, high-profile cases hinge on questions on scientific fact. Putting a science-literate justice on the court would help steer these critical cases toward outcomes that are grounded in reality.

Consider the Clean Power Plan, the Environmental Protection Agency’s new standards to reduce carbon emissions from coal-fired power plants. One key question in the case is whether the standards encroach upon states’ right to regulate their own pollutants. Traditionally, states are permitted to manage pollutants that remain within their own boundaries, while the federal government may police pollutants that affect multiple states. The 29 states suing to halt the plan insist that carbon emissions do not have enough of an effect beyond state borders to merit federal intervention. A science-minded justice could dispassionately examine the data showing that carbon pollution spreads not just nationally but internationally.

Or take the court’s latest abortion case, a challenge to Texas’s new regulations of abortion clinics. Texas asserts that its law requiring clinics to meet ambulatory surgical center standards is necessary to protect women’s health—not a backdoor effort to shut down the majority of Texas abortion clinics. To make its case, Texas solicited the testimony of self-described experts who claimed that abortion is an extraordinarily dangerous and often life-threatening procedure.

The actual risk of abortion is the central question. If abortion is dangerous, then the Texas law is not an unconstitutional “undue burden,” but a sensible safety regulation. If abortion isn’tespecially hazardous, then the Texas law is an unconstitutional overreach of the state’s powers. Once again, the outcome of the case pivots on the justices’ ability—or, given the likely division of the court, one justice’s ability—to sift through sophisticated medical information and separate facts from politics.

A similar task awaits the justices if the court is called upon to decide the constitutionality of anti-gay adoption bans. Even after the Supreme Court legalized same-sex marriage, Mississippi continues to outlaw same-sex adoption. The state has decided to defend its ban in court, and the issue could easily reach the Supreme Court. At that point, the justices will confront Mississippi’s claim that same-sex parents are inferior to opposite-sex parents. When this issue was raised during oral arguments over same-sex marriage, Scalia said that there is “considerable disagreement among sociologists” on this question. But there really isn’t: Scores of studies have concluded that gay parents are just as competent as straight parents. Obama’s appointee will need weigh the these studies against Mississippi’s claims.

No single scientific issue has divided the Supreme Court justices as thoroughly as juvenile brain development. Over the past decade, the court has curtailed states’ ability to punish juvenile offenders—first barring the death penalty for minors who commit homicide, then prohibiting life without parole for minors who commit non-homicidal crimes. More recently, the court strictly limited juvenile life without parole for all offenses, and it is now poised to decide whether locking minors away for life is unconstitutionally “cruel and unusual.”

In these opinions, the court has cited neuroscience demonstrating that adolescent brains are not fully developed, making juvenile offenders less culpable for their crimes. As Laurence Steinberg, a professor of psychology at Temple University, writes: “Over the course of adolescence and into early adulthood, there is a strengthening of activity in brain systems involving self-regulation. During tasks that require self-control, adults employ a wider network of brain regions than do adolescents, and this trait may make self-control easier, by distributing the work across multiple areas of the brain rather than overtaxing a smaller number of regions.”

In other words, minors who commit crimes may actually have a diminished mental ability to stop themselves. That means juveniles’ criminal impulses may not be deterred by the threat of an unusually severe punishment—and those who are imprisoned may have a better shot at rehabilitation once they mature.

The importance of scientific literacy in the judicial branch of government stretches far beyond a handful of individual cases. An openness to science entails curiosity about the world, a devotion to reality, and humility in recognizing that one cannot know everything all of time. It means changing one’s opinion when the facts change, and continually testing one’s deepest beliefs against the possibility of error. Many of the qualities that make a good scientist, in other words, also make a good judge. And Obama would be wise to nominate a Supreme Court candidate who represents the best of both fields.